[2017] KEHC 2069 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

SUCC CAUSE NO.434 OF 2002

IN THE MATTER OF THE ESTATE OF LATE AMOS KIMONDO

TUTUMA alias KIMONDO TUTUMA (DECEASED)

R U L I N G

The summons for rectification of grant dated 3/8/2017 is brought under certificate of urgency of Kiarie Kariuki & Githii Advocates dated 21st of September 2017 and filed on 2/10/2017.

It is brought under section 74 of the Law of Succession Act and rule 43(1) of the P&A Rules.

It is supported by the affidavit sworn by Cecilia Wairimu Kimondo

It seeks orders;

1. That the confirmed grant of letters of administration issued to the said Cecilia Wairimu Kimondo on the 28th day of September, 2007 be rectified and/or reviewed to include the following omitted property to the schedule of assets in the grant: 1/14 share of plot number 250 of section No. 1 Nairobi East Township (Eastleigh)

2. The costs of this application be provided for.

The grounds for the application as set out on the face of the summons are:

1. That the schedule of assets in petition for letters of administration intestate and the confirmed grant inadvertently omitted the deceased ‘s 1/14 Share of plot No. 250 of Section No.1 Nairobi East township (Eastleigh).

2. That it is in the interest of justice that the said schedule be rectified to include all assets to enable the administrator effectively administer the deceased’s estate.

3. That the omitted asset is to be distributed equally amongst all the beneficiaries.

Annexed to the affidavit is a copy of search which indicates that the person in the name of JOSEPH KIMONDO TUTUMA was one of the 14 tenants in common of LR 36/250/1.

I have perused the court file and noted that the certificate of confirmation of grant to the estate of AMOS KIMONDO TUTUMA alias KIMONDO TUTUMA was issued on the 28th September 2007 to CECILIA WAIRIMU KIMONDO. I have seen the certificate of death for one AMOS KIMONDO TUTUMA.

According to the advocate, the matter is urgent because the beneficiaries wish to urgently sell the same. Unless there is an urgent need that requires the disposal of the property that is not a good reason to certify a matter urgent. The time that has lapsed since then is what in my view makes the application urgent, and it is so certified.

Having done so, I find that the property that is sought to be included in the list of assets does not appear in the name of the deceased AMOS KIMONDO TUTUMA but JOSEPH KIMONDO TUTUMA. There is annexed to the affidavit in support of the application form 47A LIMITED GRANT OF LETTERS OF ADMINISTRATION AD LITEM issued to CECILIA WAIRIMU KIMONDO with respect to the estate of AMOS KMONDO TUTUMA alia JOSEPH KIMONDO TUTUMA in High Court Succession cause no 1352 of 2014.

This is begging the question why the petitioner would file for letters ad litem in Nairobi in 2014 when the grant had already been confirmed, and she was already the administrator of the estate? Secondly why is it that the name JOSEPH was never used in this petition nor any application made to include it?

Except for the limited grant issued on 7th October 2014 there is nothing else before me to confirm that Amos and Joseph are the same person.

No evidence has been placed before me in the supporting affidavit to establish that these names refer to the same person. It would be reckless on my part to draw the conclusion that simply because the last two names are similar, they refer to the same person. It is the duty of the applicant to place sufficient evidence before me that indeed that is so, and especially because the urgency for her is the need to sell.

In as much as the court is empowered to rectify errors on the grant, that error must be properly established.

In the circumstances of this case, that has not been done, and until proper evidence is placed before me, the orders sought are not tenable.

The application is dismissed.

I make no orders as to costs.

Dated and signed this 3rd October 2017 at Nyeri.

Teresia Matheka

Judge

Court Assistant: Harriet